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The Internet as a Speech Machine and Other Myths Confounding Section 230 Reform
Get PDFA robust public debate is currently underway about the responsibility of online platforms. We have long called for this discussion, but only recently has it been seriously taken up by legislators and the public. The debate begins with a basic question: should platforms should be responsible for user-generated content? If so, under what circumstances? What exactly would such responsibility look like? Under consideration is Section 230 of the Communications Decency Act—a provision originally designed to encourage tech companies to clean up “offensive” online content. The public discourse around Section 230, however, is riddled with misconceptions. As an initial matter, many people who opine about the law are unfamiliar with its history, text, and application. This lack of knowledge impairs thoughtful evaluation of the law’s goals and how well they have been achieved. Accordingly, Part I of this Article sets the stage with a description of Section 230—its legislative history and purpose, its interpretation in the courts, and the problems that current judicial interpretation raises. A second, and related, major source of misunderstanding is the conflation of Section 230 and the First Amendment. Part II details how this conflation distorts discussion in three ways: it assumes all Internet activity is protected speech; it treats private actors as though they were government actors; and it presumes that regulation will inevitably result in less speech. These distortions must be addressed in order to pave the way for clear-eyed policy reform. Part III offers potential solutions to help Section 230 achieve its legitimate goals
The Limits of Medical X-pertise: Gender Markers in a Pandemic
Get PDFThe world changed drastically in 2020. The pandemic has far reaching consequences, and so too do the current civil rights movements and the struggle for gender justice and liberation. This Article seeks to describe a moment in time, a moment of doubt of how one \u27s gender and race will predict one \u27s ability to survive the pandemic-not simply COVID-19, but the pandemic writ-large and all the wrenches it has thrown into the health-care machine. How do those of us standing at the edge of a gender revolution navigate these waters? Will our health be the price we pay for our self-determination? Or will we be forced to lose our self-determination to preserve our health
GDPR and the Importance of Data to AI Startups
Get PDFWhat is the impact of the European Union’s General Data Protection Regime (“GDPR”) and data regulation on AI startups? How important is data to AI product development? We study these questions using unique survey data of commercial AI startups. AI startups rely on data for their product development. Given the scale and scope of their business models, these startups are particularly susceptible to policy changes impacting data collection, storage and use. We find that training data and frequent model refreshes are particularly important for AI startups that rely on neural nets and ensemble learning algorithms. We also find that firms with customers in Europe are significantly more likely to create a new position to handle GDPR-related issues or to reallocate firm resources due to GDPR
Arbitration and Law
No full textThis chapter discusses the relationship between arbitration and law. Three sets of questions present themselves with respect to the role of law in arbitration. The first relates to arbitration’s legal framework. The second relates to the specific procedures by which arbitration proceedings unfold, for example, in presenting evidence or organizing oral hearings. The third implicates the arbitrator’s evaluation of the merits of the disputes itself. Although separate, the three dimensions of law support each other in promoting the efficiency, fairness, and legitimacy of cross-border dispute resolution. Performance of the arbitrator’s function thus falls within a framework of cases, statutes, and treaties seeking balance between two goals: (i) to prevent disregard of an arbitration commitment; while at the same time (ii) to monitor the arbitral process for conformity to recognized notions of procedural fairnes
Text, Intent and Taxation in the United States, the United Kingdom and France
No full textAlong with an impressive evolutionary cross-comparison of the anti-avoidance approaches in the United States, the UK and France, this chapter provides several general insights that echo the previous parts of the Companion. In particular, it explores the similarities and divergence of the doctrines developed by courts when attempting to strike the balance between preserving the rule of law and giving the necessary tools to tax authorities to curb tax avoidance. This comparison is especially interesting in light of the different traditions of legislative-judicial interactions and doctrinal development in common law jurisdictions of the United States and the UK vis-à-vis the civil law system in France
Addressing Financial Access to Justice in Investment Treaty Arbitration
No full textInvestors and States are stuck in their roles as claimant and respondent, respectively, because the implementation of the Investor-State Dispute Settlement (ISDS) system echoes world economic power dynamics that have historically been more rigid than the text of the ISDS-governing documents. Third-party funding is a lens through which to analyze one consequence of this overarching structural inequality in ISDS: lack of financial access to justice. This chapter explains how third-party funding shines a spotlight on this pervasive lack of financial access to justice in ISDS and presents suggestions for how to address financial access to justice in ISDS without requiring the renegotiation of thousands of investment treaties
Inequality During a Pandemic, Part I: Shared Suffering and Self-Quarantine
No full textAs governors and mayors rush to stem the spread of COVID-19 throughout the country, and as healthcare workers make difficult resource allocation decisions, they are often treating some people differently from others. “Essential” businesses or establishments are permitted to stay open and fight for economic survival, while “non-essential” ones are forced to close, perhaps forever. Some jurisdictions, like Alaska and Rhode Island, are requiring that people traveling from elsewhere self-quarantine for a period of time
FDA In the Time of COVID-19
Get PDFOver the past century, Congress has made the Food & Drug Administration (FDA) responsible for regulating the safety and efficacy of drugs and devices being deployed in the fight against the COVID-19 pandemic. The FDA’s regulatory infrastructure was built for public health threats and to combat manufacturers\u27 misinformation about treatments.
This article spotlights the ways in which FDA has been adapting to a new challenge during the COVID-19 pandemic: combating misinformation emanating from within the executive branch
The Common Law Inside a Social Hierarchy: Power or Reason?
Get PDFAnita Bernstein argues that the common law gives women, too, the right to say no to what they do not want. She demonstrates that the common law is a far-reaching defense of condoned self-regard, a system that allows individuals to place their own interests above the interests of others, particularly when seeking to exclude others. She, therefore, places in the common law a right to protection from rape and a near-absolute right to expel a pregnancy. Bernstein reasons that women’s exclusion from the common law right to say no was a mistake produced by their absence from the judiciary. This review argues an alternative explanation for the gap between reality and faithful reasoning: the common law is an elegant tool in the pantheon of tools used to create and defend social, economic, and civic hierarchy. The common law, precisely because it is undemocratic, has been a useful instrument to test-drive rationalizations for the status quo, including the status quo of identity hierarchies
Error Costs, Ratio Tests, and Patent Antitrust Law
Get PDFThis paper examines the welfare tradeoff between patent and antitrust law. Since patent and antitrust law have contradictory goals, the question that naturally arises is how one should choose between the two in instances where there is a conflict. One sensible approach to choosing between two legal standards, or between proof standards with respect to evidence, is to consider the relative costs of errors. The approach in this paper is to consider the ratio of false positives to false negatives in patent antitrust. We find that the relevant error cost ratio for patent antitrust is the proportion of the sum of the monopoly profit and residual consumer surplus to the deadweight loss. This error cost ratio, for a wide range of deterministic demand functions, ranges from infinity to a low of roughly three. This suggests that patent antitrust law should err on the side of protecting innovation incentives